JANINE JACKSON: It was widely noted that Barack Obama’s last State of the Union address contained the same promise as his first, that he would move to close the military detention center in Guantanamo Bay, Cuba, now entering its 14th year. Media present closing Guantanamo as Obama’s quest, something he wants badly. That he has struggled mightily to close the prison is one presumption. The more striking one is that Guantanamo is, above all, Obama’s problem, rather than that of the hundreds of people who’ve been held there, or of a society aspiring to democracy that permits a prison that operates outside the law.

We’re joined now by Omar Shakir. He’s the Bertha Fellow at the Center for Constitutional Rights. He joins us by phone from New York. Welcome to CounterSpin, Omar Shakir.

OMAR SHAKIR: Thank you for having me.

JJ: I understand Beltway reporters’ tendency to report on Guantanamo Bay as about Barack Obama, you know: his legacy, his power. That’s not irrelevant, but there’s just so much else at stake. Some of our listeners were in grade school when Guantanamo Bay opened. Remind us why it opened; what was the supposed purpose in 2002?

Prisoners at Guantanamo Bay

OS: Sure. The Bush administration opened Guantanamo to create a prison that was beyond the reach of any law. They explicitly chose it so that the US Constitution and other law would not apply. In their minds, the nature of US control over that base meant that international law wouldn’t apply, Cuban law wouldn’t apply. It was meant to be an area where they could use torture and other brutal interrogation tactics as they wanted, where they could hold people without charge, where they could conduct trials without basic due process protections. It was meant mostly for that purpose and, in addition, to be far removed so that could easily be hidden from the conscience of most Americans, and out of sight, out of mind, in a place where they could bring whoever they wanted whenever they wanted for as long as they wanted.

JJ: Well, that sounds dystopian. And it’s amazing the degree to which it was kind of accepted, or has become normalized, at least, by US media. A CBS affiliate story recently on five Yemeni men who were released to the United Arab Emirates just sort of reported none of the men had been charged with a crime, but they’d been detained as enemy combatants, you know, as though this were a kind of generally understood legal terminology and as though it made sense.

So who was there, who is there still, in Guantanamo Bay? Who got caught up in it?

OS: So we currently, as of today, have 93 individuals left in Guantanamo. Over the history of Guantanamo, 780 individuals have been held there. All are Muslim men and boys. Out of the 780, the vast majority have not been charged with any crime at all. Most were cleared for release. You have a lot of people, as the former US envoy for Guantanamo’s closure put it, that simply were not the worst of the worst but, a direct quote, “had the worst of luck.” A lot of people that were brought over because the US was offering bounties in late 2001, early 2002, to local villagers who turned in anyone they suspected of militance, which obviously, for communities, meant people turning in anybody that they could make any kind of case. You know, maybe they were not from that town, or they had a personal gripe with them.

The US’s own numbers say that only 8 percent were ever Al Qaeda fighters. There’s even a smaller percentage of numbers that the US actually claims were involved in any sort of combat. And at the end of the day, you have more people that have died in Guantanamo than actually have been convicted by a court. So that should give you some perspective, now that we commemorate the 14th anniversary of Guantanamo’s opening, 15 years for many men there, and we still have a reality where men continue to languish without charge, and many of whom have been cleared for release.

JJ: FAIR took the New York Times to task in 2009 for a story on a leaked Pentagon report which they headlined “One in Seven Freed Detainees Rejoins Fight, Report Finds.” It was talking about former prisoners from Guantanamo “returning to terrorism or militant activity” when, as you’ve just explained, in many or most cases, they’ve not been shown to have been involved in any in the first place.

And yet for reporters, this image of Guantanamo as holding “the worst of the worst,” and we’ve seen politicians pick up on this, it had something to do with the fact that–and there were exceptions, folks like Carol Rosenberg, who really did hard, independent work–but, in general, there was a reliance on the Pentagon as the source for any knowledge you were getting out of Guantanamo. And that turned out not to be the best route to reliable information.

OS: That’s absolutely right. I mean, I think a lot of this has to do with Islamophobia and the reality that fearmongering has always been the primary justification for the ongoing detention of folks at Guantanamo Bay. And I think those leaks also, if you sort of look at the timing, it’s always bureaucrats. Usually the Department of Defense, Homeland Security, FBI, that have their own reasons for wanting Guantanamo open, who are selectively leaking, in many cases, inaccurate information. Or even if it has some accuracy in it, it’s being framed in a way to further the opportunistic politicians that want to bank on fearmongering as a way to either criticize President Obama or to scuttle efforts to close Guantanamo.

So the way that that sort of reverberates in media and in political circles I think is deeply problematic, and those folks deserve a lot of the blame for Guantanamo still being open in 2016.

JJ: It’s not that the obstacles aren’t real, but what can we say about Obama’s capacity to move the issue? Could he not do more?

OS: Absolutely he can. I mean, it is very real that there are obstacles, both within his own administration and in Congress. But at the same time, these obstacles emerged as a result of the fact that from the beginning, while President Obama did on his second day in office issue executive orders calling for the closure of Guantanamo, from the early days of that administration it was not followed up with a concrete plan of action and a set of steps to actually effectuate it.

The way he went about the first year, and on into subsequent years, provided space for these obstacles to emerge. And as soon as they emerged, they were the excuse for no action. On his own, based on his own authority, he can release guys that are cleared for release. I mean, we’re talking about out of the 93 detainees left, 34 of them are cleared for release. Tomorrow President Obama could put them on an airplane, send them away. Of the remaining detainees, you have 49 of whom who are awaiting hearings by the periodic review boards that have been clearing the vast majority of detainees.

If those review boards were expedited–and as president, Obama promised to do all hearings within a year–if he actually followed through with expediting that, you would have many more men cleared for release. And if the military commission system, which has been fraught with abuses and serious due process violations, were once and for all done away with, and those that the US does suspect of criminal involvement were charged in federal courts, and the administration used a simple charge-or-release paradigm very familiar to prosecutors, he could on his own power close Guantanamo in a matter of days, not months or years.

JJ: It was interesting, in the State of the Union speech, that Obama said–and which many media credited him for revealing yet again his urge, his strong compulsion, to close Guantanamo–what he actually said is: “I will keep working to shut down the prison at Guantanamo. It’s expensive, it’s unnecessary, and it only serves as a recruitment brochure for our enemies.”

Anytime a criticism of an abusive practice or policy begins with “it’s expensive,” you know, it’s not really inspiring. It doesn’t really give you the feeling that the problem is the absence of due process, that the problem is putting people in a black hole of a prison that’s opaque to the public and that’s outside of the rule of law. His opposition, it doesn’t seem to be based on what some of us would call the right reasons.

OS: Right. The core injustice is indefinite detention; it’s this idea that you can have individuals who are now in their 15th year of detention under US control, who the US government has said pose no threat, are cleared for release, who have never been charged with a crime, but yet wake up each day in Guantanamo and have no idea whether that will be the day that they’re released, whether they could die there, whether they’ll ever see their families again. That core injustice–that’s not going to be solved by the reports of the president thinking about transferring Guantanamo to a federal prison in the United States. That’s not closing Guantanamo; that’s merely changing its zip code and not addressing the core injustice.

JJ: We’ve been speaking with Omar Shakir of the Center for Constitutional Rights. You can find their work on Guantanamo, along with their work on other issues, online at CCRJustice.org. Omar Shakir, thank you so much for joining us this week on CounterSpin.